Enhancing Compliance With an Evolving Treaty: A Task for an Improved BWC Intersessional Process

Since 2003, the Biological Weapons Convention (BWC) regime has featured annual meetings to address specific topics. These meetings, which comprise the treaty’s so-called intersessional process, take place in the years in which review conferences do not. Review conferences are infrequent, occuring about every five years; states-parties are hard-pressed to effect far-reaching changes given the short, three-week duration of these gatherings. Thus, work performed before and between the conferences is vital to the health of the BWC.

In theory, recurring meetings between review conferences create a more continuous and effective method for improving the treaty regime, providing opportunities to develop agreed “understandings” that strengthen the treaty or expand its scope. Unfortunately, however, the meetings under the BWC intersessional process in its current form have not been able to fully deliver these benefits to the parties.

With the seventh review conference of the BWC approaching in December of this year, the parties have a chance not only to renew but also to enhance the intersessional process. Although they have shown support for the process, some parties have become increasingly unsatisfied with its limited mandate, which has prevented them from taking formal decisions leading to follow-up actions and has constrained the scope of issues addressed each year. This latter shortcoming has been particularly significant because it has meant that past intersessional meetings have not addressed a central requirement of the treaty: ensuring that the states-parties are in compliance with the ban on the development, production, and stockpiling of biological weapons. This task, considered to be the core purpose of the treaty, became a controversial topic for discussion after the collapse during the 2001 review conference of negotiations on a legally binding mechanism, popularly known as the “verification protocol,” for monitoring and enhancing compliance with the treaty. Thus, compliance issues were not included in the prescribed collection of intersessional topics from 2003 to 2010.

Now, with an increasing distance from the 2001 conference and a growing political openness to discussing BWC compliance, the parties can and should begin to tackle compliance issues during the next intersessional work program. This new emphasis, combined with a stronger mandate for consensus decision-making, would allow the parties to build reciprocal confidence in compliance and to work toward remedying one of the BWC regime’s major flaws: its inability to monitor and enforce compliance. At the same time, the parties must keep in mind the great contributions made by past intersessional meetings and must preserve the strengths of the current process, such as its role in providing a multidisciplinary forum for security and health experts to discuss measures and strategies for protecting the world against the entire spectrum of biological threats, both natural and manmade.

Birth of the Process

During the summer of 2001, six and a half years of negotiations on a legally binding mechanism for monitoring and enhancing compliance with the BWC came to an abrupt end when the U.S. government rejected the draft verification protocol. Since the entry into force of the BWC in 1975, one of its distinguishing features had been the lack of formal measures to verify its prohibitions on the development, production, and stockpiling of biological weapons. Events in the 1990s, namely the public exposure of the vast offensive biological weapons program run by the Soviet Union in contravention of the BWC and the difficulties determining the Iraqi biological threat, had exemplified the danger of a treaty without teeth. Consequently, the parties had decided to address this problem by establishing a negotiating forum called the Ad Hoc Group to develop a legally binding verification mechanism, which would include the declaration and routine inspection of treaty-relevant facilities, such as vaccine production plants.

The United States rejected the draft BWC verification protocol because it judged that the proposed measures would be ineffective in detecting and deterring BWC violations and overly burdensome to biodefense research and the biotechnology and pharmaceutical industries. Washington also felt that the protocol negotiations had been undermined by certain countries’ agendas.[1] In particular, Iran sought to abolish the dual-use export controls imposed by the Australia Group and other multilateral arrangements, while Russia pressed its desire to delineate quantitative thresholds and specific lists of agents prohibited by the treaty, which would narrow the scope of its ban.[2] Consequently, Washington withdrew from the protocol negotiations, effectively terminating the endeavor.

When the 2001 review conference convened in Geneva a few months later, an 11th-hour demand by the United States to disband the Ad Hoc Group encountered strong opposition from several countries, resulting in a negotiating deadlock. In an effort to salvage the conference, the chairman, Ambassador Tibor Tóth of Hungary, reacted with diplomatic savvy. In what the press described as a “rescue effort,” Tóth put the review conference on hold for a year and held consultations with the United States and other key players to work out a compromise solution. He reconvened the review conference in late 2002, making it possible for member states to reach consensus. The compromise formula involved the creation of an “intersessional work program” of annual meetings, focusing on national implementation and the prevention of bioterrorism, that has energized the BWC in new ways over the past nine years.

Accomplishments

The intersessional work program has consisted of annual meetings that are convened with the stated purpose of “discuss[ing] and promot[ing] common understanding and effective action” on a set of specific topics agreed on by the states-parties (see table). Starting in 2003, there were two intersessional meetings each year: a two-week “meeting of experts” that prepared a factual report on the year’s prescribed topic or topics and a one-week “meeting of states parties” that reached agreement by consensus on a final document, including conclusions to be considered at the 2006 review conference. Satisfied with the contributions made by the annual meetings, the parties decided during that conference to renew the intersessional process for another cycle.[3]

Established out of the discord that followed the deadlocked 2001 review conference, the intersessional process was immediately valuable for maintaining dialogue among the parties and keeping them focused on biological weapons nonproliferation. Beyond this important contribution to political atmospherics, the intersessional meetings have provided a unique international forum in Geneva for addressing complex topics in global biosecurity by bringing together the wide range of professionals involved in various aspects of the challenge.

For example, the 2010 meetings addressed a range of issues, including contingencies for investigating the alleged use of biological weapons, methods for providing international assistance to mitigate the impact of such use, and capacity building in the areas of disease surveillance, detection, and diagnosis. Handling the multifaceted nature of such topics requires the inclusion of a broad range of expertise from various sectors of society. The intersessional meetings generally have succeeded in bringing together these diverse communities, including representatives from the international diplomatic corps, national and international scientific and public health organizations, domestic law enforcement and regulatory agencies, and civil society groups.

The gathering of interdisciplinary representation to address particular topics accomplishes more than simply generating dialogue. Some critics of the intersessional process have likened it to a “talk shop,” observing that diplomats and experts have gathered annually to talk about problems facing the treaty rather than actually trying to fix them.[4] Yet, the intersessional meetings have led to more concrete results than mere conversations; they have facilitated productive activities and relationships between delegates and experts across the globe. It has become common for parties to strengthen international partnerships and capacities by holding exercises or workshops in advance of an intersessional meeting and for delegations to connect with one another, discuss issues of mutual interest, and arrange plans for bilateral or multilateral activities in the meeting’s wake.

One such case was in conjunction with the 2010 meetings on responding to biological attacks, when parties from around the world participated in tabletop exercises aimed at enhancing their ability to counter bioterrorism.[5] Through these exercises, the participating countries have developed better practices and procedures for dealing with the bioterrorist threat—benefits that will not only enable them to mitigate the consequences of a biological attack more effectively, should one occur in the future, but also put them in a better position to prevent and deter bioterrorism.

Other positive outcomes of the intersessional meetings have been less tangible yet still important. At the meetings, government experts absorb material from days of technical presentations and consult with their foreign counterparts. Some of these experts then return home and quietly apply their new knowledge, for instance, to revise national procedures and train domestic personnel, without putting these gains into writing.[6] Meanwhile, the inclusion of nongovernmental organizations in formal sessions and informal side events at the intersessional meetings has reinforced the important role played by civil society in upholding the norm against the use of disease as a weapon.[7]

By presenting regular opportunities for collaboration and assistance in areas such as national implementation of the BWC and infectious disease surveillance, the intersessional meetings have demonstrated the concrete advantages involved in being part of the BWC regime. Such exchanges of information and best practices not only strengthen the global capacity to protect against biological threats, but also serve as an incentive for parties to remain faithful to the treaty and for nonmembers to join. That 17 additional countries have joined the BWC since 2002, for a total of 164 parties to date, is evidence that the treaty regime is alive and healthy. The intersessional process, along with the 2006 creation of an Implementation Support Unit (ISU) in Geneva for the treaty, has been a key factor in the BWC’s continued progress toward universal membership.

Shortcomings

Although the intersessional meetings have yielded numerous benefits, the resulting partnerships and follow-up activities have occurred on a voluntary basis, without formal coordination by the BWC regime. The intersessional meetings lack the authority to reach formal decisions leading to follow-up actions, preventing the process from making lasting improvements to the nuts and bolts of the treaty—its institutional, operational, and legally binding aspects. In the words of one expert, the intersessional process’s objective of “establish[ing] common understandings and promot[ing] effective action at the national level” has amounted to “incrementalism.”[8] Such an approach leaves the parties inadequately equipped to strengthen the BWC’s foundations.

Another expert explains that the current design of the intersessional process, with its lack of a decision-making mandate and limited scope of issues addressed, has led to agendas that are “self-contained” rather than integrated into the treaty’s evolution. Fixing those shortcomings would enable the annual meetings to “serve the needs of the [BWC] with greater effectiveness and precision and thus build momentum year on year.”[9]

In reaching agreement on the topics for past annual meetings, the parties have omitted compliance and verification matters, choosing instead to focus on less-controversial issues such as disease surveillance, biosafety, and biosecurity—issues that gained an elevated stature from the 2001 anthrax letter attacks in the United States. As a result, the intersessional process has been criticized for focusing disproportionately on broad public health and bioterrorism prevention efforts rather than the core purpose for which the treaty was originally negotiated: ensuring that states do not possess, acquire, or proliferate biological weapons.[10]

The BWC is often referenced as the cornerstone of the global biological weapons disarmament and nonproliferation regime. It also is considered to be an important part of the wider “web of prevention” comprising all of the mutually reinforcing tools, arrangements, and approaches that collectively contribute to managing the risk of biological threats.[11] Yet, in some ways, the past intersessional process has not optimized the BWC’s potential as a unique component of the web of prevention. By taking up a range of discrete topics in a relatively uncoordinated fashion, limiting itself to exchanges of information without decision-making, and neglecting the central issue of compliance, the intersessional process over the past nine years has not done as much as it could have to strengthen the BWC regime.

Avenues for Progress

Like other national and international legal arrangements, the BWC must be reinterpreted periodically. In fact, one of the purposes of review conferences is to enable the parties to revise or clarify their common understandings of the treaty as a whole and its individual provisions. Every review conference has introduced new perspectives on the treaty regime, as the parties have worked to strengthen it and adapt it to the latest technological, political, and security developments. The intersessional process from 2003 to 2010 gradually has led to a reinterpretation of the BWC as a venue for promoting a broad range of activities for managing biological risks, both natural and deliberate.

Richard Lennane, head of the ISU, has said he expects the upcoming review conference to renew the intersessional process: “I think nearly all states parties will be keen to retain the very positive benefits of the [process]—especially the opportunity for experts to interact and share information and experiences—but beyond that, options are very much open.”[12] Indeed, although some parties already have begun to discuss their visions for improvements, the future design of the intersessional process will be unclear until the conclusion of the review conference. To determine the elements of the next intersessional work program, specifically, which topics it will address and with what types of decision-making power, the parties will need to reach a clearer understanding of the functions of the treaty.

For example, should the treaty regime play the role of international biosecurity forum? Has this new interpretation been productive for the BWC and for the global nonproliferation regime as a whole? Such questions are sure to elicit a range of responses, as different parties have come to expect different things from the BWC. (Article X, which contains the treaty’s peaceful-cooperation provisions, is another area in which the parties have different interpretations of the treaty, owing to the tension between that article’s endorsement of technology transfers for peaceful purposes and the nonproliferation obligations under Article III.) Regardless of the full collection of functions to be performed by the BWC regime, the core prohibitions on which the treaty was founded cannot be neglected. Moreover, the intersessional process should place a greater emphasis on those core functions.

Fortunately, the rhetoric on BWC compliance has evolved in ways that could prove beneficial in moving forward with an effort to revisit the issue.[13] This trend was evident in several of the opening statements at the last intersessional meeting, in December 2010. Rather than framing the topic in its pre-2001 form as an issue of “verification,” a term that is still too politically loaded, a handful of parties focused on the importance of enhancing “confidence in compliance.” The states making such comments included the United States, the countries of the European Union, and the so-called JACKSNNZ group (Japan, Australia, Canada, South Korea, Switzerland, Norway, and New Zealand).[14] Despite the renewed U.S. rejection in 2009 of negotiations on a legally binding verification protocol, Washington has indicated its willingness to explore “alternatives to a traditional verification mechanism.”[15]

The next intersessional period represents a prime opportunity for performing concrete, coordinated work to make progress on strengthening the ability of the BWC regime to assess compliance. Although the upcoming review conference is unlikely to provide sufficient time to reach agreement on how exactly to improve this aspect of the treaty, the parties should develop a focused plan for the next intersessional work program to address this matter, explore possible ways forward, and adopt decisions leading to common understandings and follow-up actions that will give momentum to the effort.

A number of countries already have lent support to the possibility of using the upcoming review conference or the intersessional period afterward to modernize an existing mechanism within the BWC regime known as the confidence-building measures, whereby member states exchange data on an annual basis regarding their national biodefense facilities and activities, plants for the production of human vaccines, unusual outbreaks of infectious disease on their territory, and other treaty-relevant matters. At present, the obligation to submit the confidence-building declarations is politically but not legally binding. Although discussions on improving the confidence-building system would be a good start, particularly if any changes increased the lackluster level of participation in the past, they would represent only a half-measure.[16] In fact, certain governments and civil society groups already have scrutinized the official declaration forms over the past decade and developed detailed, feasible options for improving them.[17]

A more comprehensive proposal on the table in the past was the Accountability Framework, presented by Canada during the 2006 review conference. By focusing not only on confidence-building measures but also on national implementation, external implementation support, and annual meetings, this model envisioned the member states committing to a range of activities that would collectively make them “more accountable to one another in how they implement the provisions” of the BWC.[18] This type of multipronged approach to the issue of compliance would be a more ambitious and useful starting point than working solely to improve the existing confidence-building system.

Despite the growing interest in measures to increase confidence in BWC compliance, a number of countries have continued to call for resuming negotiations on a legally binding verification protocol. This group of countries includes Russia, which last December reiterated its position that a legally binding verification mechanism remains “one of the key ways to improve the BWC,” and the Nonaligned Movement (NAM), a bloc representing about 100 developing countries.[19] There are indications, however, that the NAM countries are not as unified on this issue as they used to be. For example, although Iran and Cuba overtly called on the United States last December to reconsider its policy on the protocol, Brazil, formerly an avid champion of BWC verification, stated more cautiously that “a verification mechanism could be envisaged.”[20] If these countries are serious about enhancing the treaty in the area of compliance assurance and assessment, they will need to refrain from pushing the issue too hard. Universal adoption of compromise language, rather than accentuation of “verification” per se, will increase the probability that the compliance matter will make it onto the agenda during the next intersessional period.

The intersessional process must not be treated as a mere program within the treaty regime, but should be utilized as a central instrument for improving the BWC. If the member states were to endow the intersessional process with the authority to make decisions and address key issues such as compliance, the ensuing years of coordinated work would enable future review conferences to be much more productive. As some parties already have suggested, such a plan might include the creation of standing working groups to identify ways of resolving particular problems. The upcoming review conference presents an important opportunity to initiate such a capability.

Preserving Current Strengths

If the intersessional process is to be redesigned, the parties also must not lose sight of the invaluable contributions it has offered in the past.

Policymakers and experts have increasingly realized that public health and security tools must be combined to deal with the broad spectrum of biological threats facing the world, an awareness that has been articulated as the “health-security interface.” The past intersessional meetings have highlighted the practical importance of interdisciplinary collaboration in protecting against the full range of biological threats and have helped develop the requisite professional networks for such collaboration. Indeed, the BWC has become a center of gravity for promoting these activities.

The Obama administration has put strong support behind this combined health-security approach and noted in its 2009 “National Strategy for Countering Biological Threats” the desire to utilize the BWC as the “premier forum for global outreach and coordination on the full scope of risk management” and to “build tighter linkages between the health and security sectors.”[21] Not all parties agree: Russia has argued that these types of issues “are quite rightly and successfully dealt with by other specialized international fora and organizations” and thus should not be the focus of BWC meetings.[22]

Undoubtedly, these issues must be addressed at a high level somewhere. The obvious alternatives would be the World Health Organization, the Food and Agriculture Organization of the United Nations, and the World Organization for Animal Health. Yet, a decision to refer discussions of the health-security interface to any of these nonsecurity organizations would be vulnerable to analogous criticisms that excessive focus on the security element would tend to undercut the organizations’ health and safety priorities. Instead, the complex nature of and potential interplay among various contemporary biological threats, including biological weapons in the hands of state actors, bioterrorism, and naturally emerging infectious diseases, require that all relevant organizations and forums consider the health-security linkages and work together to address them. The BWC intersessional process is no exception.

A Balanced Approach

The intersessional process’s current focus on health-security topics and its need to address the core issue of state compliance are not mutually exclusive. Instead, the future process can include two tracks to perform both functions.

The two tracks need not be formally connected or programmed to include simultaneous gatherings; rather, they could proceed more or less independently. The first track would consist of a coordinated set of regular meetings, as well as a working-group option, focused on strengthening the treaty’s ability to ensure parties’ compliance. These meetings would be given an appropriate decision-making mandate to empower them to develop concrete proposals and recommendations that would be considered at the following review conference.

The second track would consist of annual meetings held in the same general format as under the current intersessional process, with the objective continuing to be to foster discussion and promote common understandings and action on a broad spectrum of biological risk topics. These meetings would remain stripped of a decision-making mandate so as to prevent them from getting bogged down in politics and preserve their focus on building relationships and ideas. However, the meetings on this track could be granted greater flexibility to address related sets of topics where appropriate, rather than sticking strictly to prescribed issues.[23]

The future intersessional process is just one item that is likely to be on the agenda at this year’s review conference, but it also has clear connections to several other key issues, such as addressing verification and compliance, improving the BWC’s confidence-building measures, and assessing the impact of scientific and technological advances on the treaty’s operation. In order to determine how all of the pieces should fit together, the parties need to start by addressing the big questions: What functions should the BWC perform, what functions should it not perform, and why?

In developing answers to these questions, the BWC should not be seen in a vacuum. A more comprehensive analysis of the institutional architecture for managing global biological risks and threats is needed to determine how its individual components can contribute in the most optimal ways. In the end, however, even the most thoughtful and rigorous analyses cannot escape the impact of competing national interests, conflicting value judgments, and the sometimes-idiosyncratic elements of multilateral diplomacy. The next several months are critical as the parties work to pre-empt conflicts in their negotiating positions to ensure a smooth and successful review conference in December.

Table 1: Intersessional Topics by Year

Year

Topic*

2003

I. The adoption of necessary national measures to implement the prohibitions set forth in the [Biological Weapons] Convention, including the enactment of penal legislation

II. National mechanisms to establish and maintain the security and oversight of pathogenic microorganisms and toxins

2004

III. Enhancing international capabilities for responding to, investigating, and mitigating the effects of cases of alleged use of biological or toxin weapons or suspicious outbreaks of disease

IV. Strengthening and broadening national and international institutional efforts and existing mechanisms for the surveillance, detection, diagnosis, and combating of infectious diseases affecting humans, animals, and plants

2005

V. The content, promulgation, and adoption of codes of conduct for scientists

2007

I. Ways and means to enhance national implementation, including enforcement of national legislation, strengthening of national institutions, and coordination among national law enforcement institutions

II. Regional and subregional cooperation on implementation of the convention

2008

III. National, regional, and international measures to improve biosafety and biosecurity, including laboratory safety and security of pathogens and toxins

IV. Oversight, education, awareness raising, and adoption and/or development of codes of conduct with the aim of preventing misuse in the context of advances in bioscience and biotechnology research with the potential of use for purposes prohibited by the convention

2009

V. With a view to enhancing international cooperation, assistance, and exchange in biological sciences and technology for peaceful purposes, promoting capacity building in the fields of disease surveillance, detection, diagnosis, and containment of infectious diseases: (1) for states-parties in need of assistance, identifying requirements and requests for capacity enhancement; and (2) from states-parties in a position to do so, and international organizations, opportunities for providing assistance related to these fields

2010

VI. Provision of assistance and coordination with relevant organizations upon request by any state-party in the case of alleged use of biological or toxin weapons, including improving national capabilities for disease surveillance, detection, and diagnosis and public health systems

*Taken from 2001/2002 and 2006 review conference final documents.

Kirk C. Bansak is a research associate in the Washington office of the JamesMartinCenter for Nonproliferation Studies of the Monterey Institute of International Studies.

ENDNOTES

1. Milton Leitenberg, “Biological Weapons in the Twentieth Century: A Review and Analysis” (paper presented at the 7th International Symposium on Protection Against Chemical and Biological Warfare, Stockholm, Sweden, June 2001), sec. 8.

2. Article I of the BWC prohibits the development, production, stockpiling, and acquisition of biological weapons, which it defines as “microbial or biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification of prophylactic, protective or other peaceful purposes.” This intent-based definition is known as the General Purpose Criterion. Russia’s desire to define specific “types and quantities” of banned agents would have narrowed the scope of the Article I ban, thereby creating thresholds for legal production of biological warfare agents.

3. The duration of the annual meeting of experts, however, was reduced to one week following the 2006 review conference.

15. U.S. Department of State official, telephone communication with author, December 17, 2010. Regarding the 2009 U.S. rejection of new verification protocol negotiations, see Ellen Tauscher, Address to the annual meeting of the states-parties to the Biological Weapons Convention, Geneva, December 9, 2009, www.state.gov/t/us/133335.htm.

16. Although the number of confidence-building submissions reached a record high in 2010, that number was only 72 out of 163 states-parties. In addition, according to Filippa Lentzos, “The [confidence-building measure] mechanism not only faces low and inconsistent participation, it is also challenged by incomplete submissions where only some of the seven [standardized confidence-building measure return] forms are submitted.” Filippa Lentzos, “Reaching a Tipping Point: Strengthening BWC Confidence-Building Measures,” Disarmament Diplomacy, No. 89 (Winter 2008).

17. For example, a collaborative effort among the Geneva Forum, the BIOS Centre of the London School of Economics, and the governments of Germany, Norway, and Switzerland yielded three workshops in 2009 and 2010 on options and proposals to update the system of confidence-building measures. For the final report of this effort, see Filippa Lentzos and R. Alexander Hamilton, “Preparing for a Comprehensive Review of the CBM Mechanism at the Seventh BWC Review Conference,” BIOS Centre, August 2010.

18. Sixth Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling or Bacteriological (Biological) and Toxin Weapons and on Their Destruction, “Accountability Framework,” BWC/CONF.VI/WP.1, October 20, 2006.

20. Rodríguez statement; Seyed Mohammad Reza Sajjadi, Statement at the meeting of BWC states-parties, December 6, 2010, http://unog.ch/80256EDD006B8954/(httpAssets)/223BAB8B140E8C7DC12577F3004B3FF2/$file/BWC+MSP+2010+101206+Iran.pdf; Luiz Filipe de Macedo Soares, Statement at the meeting of BWC states-parties, December 6, 2010, http://unog.ch/80256EDD006B8954/(httpAssets)/C52656A1BEDDE058C12577F200352D3E/$file/BWC_MSP_2010-Brazil-101206.pdf. Brazil is a NAM observer rather than a member, but it belongs to the BWC regional group known as the Group of the Non-Aligned Movement and Other States.